FORT WORTH, Texas, December 21, 2018 (LifeSiteNews) – The district judge who declared the so-called Affordable Care Act (ACA) unconstitutional last week will hear a case against the Obama-era rule that plaintiffs say interprets “sex discrimination” to mandate abortion and sex-change coverage.
In 2016, five states – Kansas, Kentucky, Nebraska, Texas, and Wisconsin – joined the Franciscan Alliance, the Christian Medical Association, Specialty Physicians of Illinois, the Christian Dental Association, and other healthcare providers in a lawsuit against the Obama administration’s rule that “sex” discrimination covers “gender identity” and “termination of pregnancy.”
They argue that the decree, if enforced, would essentially force Christian hospitals and other healthcare nonprofits to allow gender-confused persons to use restrooms facilities of the opposite sex, as well as insurance coverage for abortions and gender “transitions.”
Judge Reed O’Connor of the Northern District of Texas granted the plaintiffs a preliminary injunction at the time, finding the “plain meaning” of “sex” in Title IX meant only the “biological and anatomical differences between male and female students as determined at their birth.” Litigation has been on hold since then, as O’Connor granted a Trump administration request last year for a stay while it reconsidered the rule, Health Affairs reported at the time.
“Even assuming HHS moves forward with its rule-making process, it has stated that it is contemplating only a ‘proposed rule’” requiring an 'indefinite' public period of notice and comment,” the plaintiffs argued in a December 11 filing. “Plaintiffs should not have to wait in limbo indefinitely, particularly as this issue gets litigated to judgment in other courts across the country.”
O’Connor has since ruled that the case can proceed, Health Affairs reported, starting in February 2019. “The judge is not expected to overturn his preliminary injunction from December 2016 against the Obama administration rule,” health policy analyst Katie Keith wrote, “but he may be forced to grapple with a number of recent decisions in other federal district courts that” suggest his “ruling is an outlier.”
“The regulation in question helps to ensure nearly 2 million transgender people have access to life-saving care,” National Center for Transgender Equality spokesperson Gillian Branstetter told NBC News. “We believe very strongly rescinding this guidance could do substantial harm to the progress made with providers and insurers at the detriment of our well-being and our rights.”
But the Becket Fund for Religious Liberty, which is representing the plaintiffs, argues that basic freedom and sound medicine are both on the line.
“The mandate does not allow space for the doctor’s medical judgment and does not even allow the doctor to refer the child to another doctor, even one more qualified, or for a hospital to find a doctor willing to perform the procedure,” the group argued. “Any refusal by a qualified and practicing doctor to perform such a procedure is a violation of the mandate.”
Judge O’Connor’s involvement in the case has become a point of additional interest in light of his ruling earlier this month that the individual insurance mandate at the heart of the ACA, better known as Obamacare, is unconstitutional, and therefore the entire law should be struck down.
That ruling has inflamed passions on the left, but also received mixed reactions from conservatives. At the Federalist, John Daniel Davidson hailed it for exposing that the “individual mandate penalty was never a tax, and everyone knows it,” and that when it’s recognized as a penalty it “violates Congress’ authority under the Commerce Clause.”
On the other hand, National Review’s Robert VerBruggen argued that O’Connor’s ruling – which didn’t block Obamacare’s implementation – is unlikely to survive on appeal because, in part, it relies on post-hoc congressional finagling rather than the statute itself.
“Basically, when Republicans repealed the individual mandate in the tax-reform bill, they didn’t quite repeal it; they just reduced the penalty to $0. (This was all they could do under certain procedural rules without opening the door to a filibuster.),” VerBruggen recalled. “Since the Supreme Court upheld the mandate in 2012 on the grounds that it was a tax, the lawsuit argues, this makes the mandate unconstitutional: A $0 penalty can’t be a tax.”